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SB-790 Wildlife connectivity mitigation credits.(2021-2022)

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Date Published: 04/14/2021 09:00 PM
SB790:v97#DOCUMENT

Amended  IN  Senate  April 14, 2021
Amended  IN  Senate  March 22, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 790


Introduced by Senators Stern and Cortese
(Principal coauthor: Assembly Member Friedman)
(Coauthor: Assembly Member Bloom)

February 19, 2021


An act to add Chapter 13 (commencing with Section 1950) to Division 2 of the Fish and Game Code, and to amend Section 800.6 of the Streets and Highways Code, relating to fish and wildlife, and making an appropriation therefor. wildlife.


LEGISLATIVE COUNSEL'S DIGEST


SB 790, as amended, Stern. Wildlife connectivity mitigation credits: Advance Mitigation Program. credits.
Existing law vests the Department of Fish and Wildlife (DFW) with jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and habitat necessary for biologically sustainable populations of those species. Existing law vests the Department of Transportation (Caltrans) with full possession and control of the state highway system.
This bill would require DFW, in consultation with Caltrans, to provide compensatory mitigation credits to support modifications and planning of projects on the state highway system that improve local and regional habitat connectivity and result in fish passage, wildlife connectivity, and other environmental improvements. The bill would authorize Caltrans to request DFW to issue credits for actions that Caltrans takes to improve fish and wildlife connectivity in connection with a project on the state highway system in excess of any legally required mitigation. The bill would authorize Caltrans to use those credits to satisfy obligations to mitigate the impacts of projects on the state highway system on fish and wildlife in the same Caltrans district.

Existing law creates the Advance Mitigation Program in Caltrans to enhance communications between Caltrans and stakeholders to protect natural resources through project mitigation, to meet or exceed applicable environmental requirements, to accelerate project delivery, and to mitigate, to the maximum extent required by law, environmental impacts from transportation infrastructure projects. Existing law creates the Advance Mitigation Account and continuously appropriates moneys in the account for purposes of the program. Existing law authorizes funds in the account to be used for specified activities, including, among others things, for purchasing, or funding the purchase of, credits from mitigation banks, conservation banks, or in-lieu fee programs approved by one or more regulatory agencies and, under certain circumstances, for implementing, or funding the implementation of, advance mitigation.

This bill would additionally authorize those funds to be used to modify or remove wildlife connectivity barriers not covered by existing regulatory programs. By expanding the purposes for which a continuously appropriated account may be used, the bill would make an appropriation.

Vote: MAJORITY   Appropriation: YESNO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) California’s climate is changing. Rising temperatures, increases in the frequency and severity of extreme events like drought and wildfire, changing ocean conditions, and shifts in precipitation patterns all pose threats to California’s plants and animals.
(b) These extreme changes alter the temperature ranges in which species thrive and survive, causing stress to plants and animals. This creates a series of cascading effects like altering predator-prey relationships, causing fluctuations in food and water supplies, and exacerbating human-caused stressors like contaminants and habitat loss.
(c) Land use has been changing as the state’s population continues to grow. Development decisions sometimes result in the conversion of grasslands, rangelands, and other natural lands and working lands to urban uses. This destroys natural habitats and corridors necessary for migration of species, which are even more important under changing climate conditions.
(d) As regional weather patterns and habitat continue to shift due to climate change, wildlife populations will likely require new foraging, breeding, and sheltering locations. Connectivity between existing core habitat areas and those required to support future wildlife populations will be crucial to allow safe migration of species between protected areas as climate patterns shift.
(e) The report prepared by the Transportation Permitting Task Force pursuant to Section 155.7 of the Streets and Highways Code makes the recommendation that agencies should establish a crediting framework for projects that result in fish passage and wildlife connectivity.
(f) Wildlife corridors and connected habitat are necessary to help native species like mountain lions, bobcats, porcupines, badgers, and deer, as well as birds, fish, insects, reptiles, and amphibian species that suffer from increasingly fragmented habitats, to maintain healthy populations, support genetic diversity, and protect wildlife from lands or infrastructure where they have the potential to face negative human-wildlife interactions or cause traffic collisions.

SEC. 2.

 Chapter 13 (commencing with Section 1950) is added to Division 2 of the Fish and Game Code, to read:
CHAPTER  13. Wildlife Connectivity Mitigation Credits

1950.
 For purposes of this chapter, the following terms apply:
(a) “Region” means a Department of Transportation district.
(b) “Transportation project” means a project to construct or improve a portion of the state highway system.

1951.
 (a) (1) The Department of Fish and Wildlife, in consultation with the Department of Transportation, shall provide compensatory mitigation credits to support modifications and planning of transportation projects that improve local and regional habitat connectivity and result in fish passage, wildlife connectivity, and other environmental improvements. These environmental improvements may include, but are not limited to, all of the following:
(A) An overpass or underpass.
(B) Vegetation management.
(C) Directional fencing.
(D) Barrier modification.
(2) In determining the value of compensatory mitigation credits for actions undertaken by the Department of Transportation, the Department of Fish and Wildlife shall consider all of the following:
(A) The impact on the ability of wildlife to access the opposite side of the roadway, including the length of the barrier, the distance of roadway until the next wildlife crossing, and the number of lanes wildlife would need to cross.
(B) The value of the habitat on the opposite side of the roadway, including impacts on genetic diversity, wildlife migration, and access to additional latitudes and altitudes of habitat to adapt to climate change.
(C) The impact on critical terrestrial habitat linkages, including, but not limited to, the Santa Monica Mountains, Santa Ana Mountains, San Gabriel Mountains, San Bernardino Mountains, Santa Cruz Mountains, and the Gabilan Mountain Range.
(D) Topography, watercourse presence, vegetative cover, mortality data, or other factors that increase the likelihood of use, or value of, a particular location for connectivity.
(b) In determining the value of the compensatory mitigation credits under this section, the Department of Fish and Wildlife and the Department of Transportation may consult with the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the United States Army Corps of Engineers.
(c) If the Department of Transportation takes actions to improve fish and wildlife connectivity in connection with a transportation project, the Department of Transportation may request that the Department of Fish and Wildlife issue credits for any action that the Department of Transportation completed in excess of any legally required mitigation. The Department of Fish and Wildlife shall issue the credits to the Department of Transportation in accordance with the requirements of this chapter.
(d) The Department of Fish and Wildlife, for purposes of implementing this section, may develop an in-lieu fee program.
(e) The Department of Transportation may use compensatory mitigation credits issued pursuant to subdivision (c) to satisfy obligations to mitigate the impacts of transportation projects on fish and wildlife required by any of the following laws:
(1) The California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).
(2) The California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3).
(3) The Lake and Streambed Alteration Program established pursuant to Chapter 6 (commencing with Section 1600).
(f) The Department of Transportation may only use compensatory mitigation credits issued pursuant to subdivision (c) within the same region in which the credits were issued.

SEC. 3.Section 800.6 of the Streets and Highways Code is amended to read:
800.6.

(a)The funds in the Advance Mitigation Account created in Section 800.7 shall be used only to do the following:

(1)Purchase, or fund the purchase of, credits from mitigation banks, conservation banks, or in-lieu fee programs approved by one or more regulatory agencies. The department may also establish mitigation banks, conservation banks, or in-lieu fee programs, or fund the establishment of mitigation banks, conservation banks, or in-lieu fee programs, in accordance with applicable state and federal standards, if the department determines that those banks or in-lieu fee programs would provide appropriate mitigation of the anticipated potential impacts of planned transportation improvements identified pursuant to Section 800.8.

(2)Pay, or fund the payment of, mitigation fees or other costs or payments associated with coverage for the department’s or other transportation agency’s projects under natural community conservation plans approved pursuant to Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code, or habitat conservation plans approved in accordance with the federal Endangered Species Act. The department shall, upon commencement of a regional conservation investment strategy pursuant to paragraph (3), provide written notification thereof to the executive administrative officer of any administrative draft natural community conservation plan, approved natural community conservation plan, or approved regional federal habitat conservation plan that overlaps the proposed area of the regional conservation investment strategy.

(3)Prepare, or fund the preparation of, regional conservation assessments and regional conservation investment strategies. Where a regional conservation investment strategy has been approved by the Department of Fish and Wildlife, the department may do either of the following:

(A)Enter into, or fund the preparation of, mitigation credit agreements with the Department of Fish and Wildlife; purchase credits from an established mitigation credit agreement; or implement, or fund the implementation of, conservation actions and habitat enhancement actions as needed to generate mitigation credits pursuant to those mitigation credit agreements.

(B)Acquire, restore, manage, monitor, enhance, and preserve lands, waterways, aquatic resources, or fisheries, or fund the acquisition, restoration, management, monitoring, enhancement, and preservation of lands, waterways, aquatic resources, or fisheries that would measurably advance a conservation objective in the regional conservation investment strategy if the department concludes that the action or actions could conserve or create environmental values that are appropriate to mitigate the anticipated potential impacts of planned transportation improvements.

(4)Where the advance mitigation mechanisms in paragraphs (1) to (3), inclusive, are not practicable, the department may implement advance mitigation, or fund the implementation of advance mitigation, in accordance with a programmatic mitigation plan pursuant to Section 800.9. No more than 25 percent of the funds in the Advance Mitigation Account may be allocated for this purpose over a four-year period.

(5)Modify or remove wildlife connectivity barriers not covered by existing regulatory programs.

(b)The department may use, or allow other transportation agencies to use, mitigation credits or values generated or obtained under the program to fulfill the mitigation requirements of planned transportation improvements if the applicable transportation agency reimburses the program for all costs of purchasing or creating the mitigation credits or values, as determined by the department. Those costs shall be calculated using total cost accounting and shall include, as applicable, land acquisition or conservation easement costs, monitoring and enforcement costs, restoration costs, transaction costs, administrative costs, contingency costs, and land management, monitoring, and protection costs.

(c)The department shall track all implemented advance mitigation projects to use as credits for environmental mitigation.

(d)Projects or plans prepared pursuant to this section that overlap with any approved natural community conservation plan or approved regional federal habitat conservation plan, shall be consistent with that plan and shall include an explanation of whether and to what extent they are consistent with any overlapping state or federal recovery plan, or other state-approved or federal-approved conservation strategy.

(e)Mitigation credits created pursuant to this section may be used for covered activities under an approved natural community conservation plan only in accordance with the requirements of the plan. Individuals and entities eligible for coverage as a participating special entity under an approved natural community conservation plan may use mitigation credits created pursuant to this section only if the plan’s implementing entity declines to extend coverage to the covered activity proposed by the eligible individual or entity.

(f)By July 1, 2019, and biennially thereafter, the department, pursuant to Section 9795 of the Government Code, and notwithstanding Section 10231.5 of the Government Code, shall submit to the Legislature a report that describes to what extent the Advance Mitigation Program has accelerated the delivery of transportation projects. At a minimum, the report shall include the following:

(1)An accounting of the Advance Mitigation Account funds.

(2)Identification of expected state and federal resource and regulatory agency mitigation requirements for transportation projects utilizing the Advance Mitigation Program.

(3)A discussion of the extent to which those requirements are satisfied using advance mitigation credits.

(4)The use of funds to prepare, or to fund the preparation of, regional conservation assessments and regional conservation investment strategies.

(5)Recommendations for maximizing the ability of the Advance Mitigation Program to satisfy state and federal mitigation requirements.

(g)By July 1, 2018, or one year after the initial Advance Mitigation Program investments have begun, whichever is earlier, and biennially thereafter, the Department of Fish and Wildlife shall, pursuant to Section 9795 of the Government Code, and notwithstanding Section 10231.5 of the Government Code, submit a report to the Legislature that describes the extent to which the Advance Mitigation Program has improved the quality and effectiveness of habitat mitigation provided by the department for transportation projects and makes related recommendations on how to maximize these attributes. The report shall also include recommendations on how to maximize the quality and effectiveness of habitat mitigation developed pursuant to the Advance Mitigation Program.

(h)Nothing in this article shall be construed to impose any restrictions or requirements on the department for activities that do not involve the utilization of Advance Mitigation Account funds. Nothing in this article shall be construed to require the department to use the Advance Mitigation Program.

(i)Before making any expenditure from the Advance Mitigation Account, the Director of Transportation shall make a determination and justification that the proposed expenditure is likely to accelerate project delivery of specific projects.

(j)Any state water or transportation infrastructure agency that requests approval of a regional conservation investment strategy pursuant to subdivision (a) of Section 1852 of the Fish and Game Code that may be used to facilitate mitigation for an infrastructure project shall not be subject to the limitation on the number of regional conservation investment strategies set in Section 1861 of the Fish and Game Code.